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The Privy Council: Enough is enough

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by Camillo M. Gonsalves

THE JAMAICAN government shuffled meekly to the steps of the Privy Council to beg our colonial masters for permission to leave the plantation. As rulers are wont to do, they declined the polite request for freedom and independence. {{more}}

It should come as no surprise that the four Lords and Baroness Hale of Richmond, ignored plain constitutional language and instead manufactured their own tortured logic to deny implementation of the Caribbean Court of Justice (CCJ). Since they could not circumvent the undisputable fact that Parliament can abolish appeals to the Privy Council with a simple majority vote, they suggested that implementing the CCJ might ‘impliedly’ affect other entrenched rights.

STOP AND THINK

Stop and think about that for a second. The Privy Council admitted in its decision that the framers of our constitution took great care in deciding which provisions should be entrenched. Those same framers explicitly decided to leave the Privy Council unentrenched. However, the Privy Council is entrenching itself through the back door, by stating that its abolition and replacement is prohibited if it impacts even slightly on other provisions. This logic is akin to telling someone that they can borrow your car, but they can’t borrow your steering wheel, gas and tyres. One item necessarily includes the others.

When you can make such barefaced and intellectually lazy assaults on logic, it becomes easier to assert other untenable arguments. You see, the Privy Council which is not entrenched in our constitution found itself in the position of requiring the CCJ’s entrenchment. How is it, you may ask, that the CCJ must be entrenched when the Privy Council itself is not?

Well, the answer, as always, lies in the ego and inherent superiority of our colonial betters. The Privy Council apparently didn’t need to be entrenched, they say, because they are ‘known to be wholly immune from executive or Parliamentary pressure … and whose members were all but irremoveable’. The reverse implication and negative aspersions cast on our own judicature need not be stated. Our once and current rulers as rulers are wont to do, declined the polite request for freedom and independence.

STANDING IN THE WAY

The upshot of the Privy Council’s decision is that, once again, Jamaican politics will stand in the way of deeper intra-Caribbean integration. Our political tribes are already beating the uncompromising drums of division and diversion.

There is, however, an expedient solution, albeit an autocratic one. The Privy Council, even while blocking a Parliamentary ‘package’ to enact the CCJ, has admitted that it cannot stop Parliament from abolishing the right of appeal to our British Lords and Baronesses. Step one, therefore, is to abolish the right of appeal to the Privy Council, full stop. Replace it with nothing. Our Court of Appeal will automatically become Jamaica’s highest court, and the Privy Council will no longer be able to impede Jamaica’s final steps off the plantation.

Step two would be to reintroduce the CCJ legislation after the Privy Council has been abolished. Any legal attempt to block the CCJ would then go not to the Privy Council, but to our own Court of Appeal, whose previous well-reasoned decisions on the CCJ indicate that Jamaica would be able to regain its place at the table of progressive Caribbean nations, without interference from an activist foreign court that holds itself above our constitution.

I am, etc.,

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Taken from the Jamaica Gleaner published: Sunday | February 6, 2005.

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